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Viennese waltz may be the last dance for Board members

Up until very recently, the mooted new home for the European Patent Office (EPO) Boards of Appeal was Berlin, unwilling as its members might be to move at the whim of the EPO President. But, as Merpel reported last week, a new proposal is being negotiated behind closed doors: why not move the Boards to Vienna? Merpel understands that President Battistelli is close to sealing a deal between Germany and Austria which would make this possible.Why Vienna?But consider this riddle: what does a move to Vienna achieve that a move to Berlin will not?One suggested answer is found in the EPO Service Regulations. Under Article 53, refusing to relocate to another country is a sackable offence. There is no direct provision for firing an employee who refuses to relocate to a different city within the same country.

Article 53Dismissal for other reasons(1) The appointing authority may decide to terminate the service of a permanent
employee if:(a) the Contracting State of which the employee is a national ceases to be
party to the Convention;(b) the employee refuses to be permanently transferred to a country other
than that in which he is serving; ...

Headquartering the Boards in a different country opens up the enthralling possibility of firing Board members, possibly even without the distasteful necessity of referring such decisions to the Enlarged Board. As Mr Battistelli has discovered in the last year, even getting one Board member fired is not as easy as one might think. The European Patent Convention and due process keep getting in the way.Why move at all?The drive to get the Boards out of Munich strikes Merpel as either deeply stupid or entirely cynical, and she doesn't believe Mr. Battistelli is at all stupid. The purported problem identified in Mr Battistelli's proposal to reform the Boards of Appeal was the "perception of independence". You couldn't, he argued, have Boards in the same building as other EPO employees whose decisions a Board might be reviewing -- which is an odd argument, since there are no Examining or Opposition Divisions based in the Isar building.A rather more widespread perception around the EPO is that Mr Battistelli can't bear to have the Boards in "his" building (Merpel seems to recall that they were there first, though), and/or that he wanted to teach the Boards a lesson. Even having his own private express lift from car park to the sumptuously appointed presidential floor does not always exclude the chance that he might encounter one face-to-face during his working day.

You can be on topand still be furious ...

The relationship was poisoned when the Enlarged Board decided Case R19/12, a decision about judicial independence about which Mr Battistelli was furious. You see, far from lacking independence, the real problem for EPO management is that the Boards are sometimes too damn independent and this cannot be tolerated. Yes, there's a structural issue in how the Boards fit into the European Patent Organisation, which would require amendment of the Convention to fully remedy, but this did not seem to cause problems in practice until now. Nobody should pretend that this proposal to move the Boards out of Munich serves the interests of judicial independence. It is really the opposite: showing this group of ungrateful judges who's really the boss, who's in control of their careers.Having established that the Boards had to get out of the current Munich headquarters, Mr Battistelli identified two options: find another building in Munich, or relocate the members of the Boards to Berlin (Vienna, which is now the front runner, appears to have been arranged behind the backs of the Administrative Council (AC) and of the Boards, since it never formed part of the formal proposal).

Boards of Appeal aregetting the message

One would normally think that, faced with the choice between (i) uprooting a group of senior employees from their homes and sending them to another city or country, and (ii) finding an office building in a city the size of Munich, there would be no debate over the proper and ethical course of action and no difficulty in achieving this goal, but Merpel understands that the intention was always to push the Boards out of Munich, and the option to stay there has never received any serious consideration. Whether the AC falls for this ruse remains to be seen.Merpel wonders if there is a mathematical formula involved which governs the relationship between judicial independence and distance from those being judged? If so, then Merpel suggests that the AC really needs to think about packing the Boards off to Reykjavik - an unbeatable 2,676 km from Munich as the crow flies.

Viennese waltz may be the last dance for Board members
Reviewed by Merpel
on
Thursday, October 08, 2015
Rating: 5

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25 comments:

We are asked to suppose that the reason for requiring the judges of DG3 to move to Vienna or face the sack is:

"...showing this group of ungrateful judges who's really the boss, who's in control of their careers"

At first sight, it seems ridiculous, that the AC can allow the President to behave like this, and destroy the fount of the highly respected and intellectually sound and coherent jurisprudence on the substantive law of validity of patents in Europe. But is it?

Elsewhere in the blogosphere, we read that what suits the power users of the patent system, in their struggles to hold down the upstarts of this world, is legal UNcertainty. The judges of DG3 have upset not only the ego of the EPO President but also the egos of quite a few CEO's of giant corporations. There are no Champions of the EPO amongst their ranks. These CEO's (it is thought that many of them are in fact sociopaths) are the masters of the universe whose minions and lobbyists explain to ministers in national governments where their duty lies. Ist so. And these governments in turn explain to their delegates on the EPO's AC how to vote. In being responsive to the minions and lobbyists, BB is only doing the bidding of his masters. Ist so.

But what of the public? Is legal uncertainty good for it? Is a coherent pan-European body of caselaw on patent validity a Good Thing for the public?

Remember "What's good for GM is good for America"? When it comes to patent law, is "What's good for VW" (for example) good for Europe?

Is this the real life?Is this just fantasy?Is causing landslidesMy escape from reality?Open your eyeslook how things lie and see

I'm just a rich boy, I need some sympathyBecause I’ve big income, like it soSo the Boards had to goThat’s the way the wind blows, long as they are far away from me,from me

Mama, just moved the BoardsPut a gun against their headSaid you move,or else you’re deadMama, life has just begunBecause I’ve gone and moved those salauds all awayMama, oo-o-o-o-ooDidn't care if they did cryMeans I don’t have to look at them tomorrowThey’ll no doubt carry on, doesn’t really matter

Too late, their time has comeSends shivers down my spineFull of pleasure quite divineGoodbye, all you Board folk – you just had to goGotta go away from here and face the truthNamely, I am le Chef - (that’s the way the wind blows)The local Grande FromageI sometimes wish you’d never been there at all...

You may be right about your chain of command, with CEO's (almost) at the top of the chain of command. And we have TTIP in preparation to confirm.

Yet, I cannot imagine this is the background of this game. Multinational companies want to have their patents granted. That can be resolved by working the examining division. The patent will be granted without too much issues and appeal is never an option.

So in my opinion, it is a game only between BB and the Board members. The AC never was a problem (or was it? some members, perhaps...). And the highly respected members of national judicial institutes have spoken out clearly for the just case. Some time ago - and I have not seen communications from their addresses anymore for a long time. Have they gone underground or did they give up. I do hope it is the first option.

Because if they have given up, indeed, it is open season for the Board and BB will have Board members for breakfast, lunch, dinner and desert.

FormerEx does seem rather out of touch. If he or she cares to check, he or she will spot that the kats all have very demanding day jobs but give generously of their own time to promote news of ip matters.

If you don't like it, why not shove off to another blog or start your own and see if you can do better?

I think that readers should keep in mind that it is not just President Putin who has a hit squad of anonymous blog spoilers busy countering postings adverse to the presidential line. Why? Bbecause it works!

So, take every posting here (including mine, of course) with a large pinch of salt and ask yourself "What's his Agenda? Why is he saying that?". A large dollop of intelligent scepticism is called for.

As H. Bosch noted, Art. 23(1) EPC has precedence over the service regulations.

It is difficult to imagine that the EBA would propose dismissal of a member refusing to be permanently transferred to Austria, given that the EPC does not allow the boards to be located in Vienna.

I suppose reappointment of members could be made conditional on a transfer to Vienna. That would give a 5-year transitional period in which many boards might hardly be functional.

But that would not solve the problem of the illegality of the boards operating in Vienna. The question whether it is legal to hold oral proceedings in Vienna (or do any appeal work there at all) will be put before the boards and it is hardly conceivable that the boards will defer to the president and ignore the EPC.

BB does not care about such subtleties and the AC does not care full stop, so the relocation exercise is going to be another nail in the coffin of the European patent system.

Brussels was all set to issue worthwhile auto emission controls until, at the very last minute, Angela Merkel got on the phone to the relevant EU Commissioner and acquainted him with the deeply-held wishes of the German auto industry. The controls went no further.

Think of the notorious cases when DG3 has found a blockbuster patent (pharma, telecoms) invalid. Blown away, throughout Europe, in one fell swoop. What does that do to the blood pressure of the CEO of the patent owner? Who do they think they are, at the EPO, the Big Boss fumes. They should know their place, It is me, not some scrivening Patent Office jobsworth, who drives my business.

Yes, other things being equal, BigCorp wants its patent applications through to issue. But are other things equal? If I were a CEO, I might be just as happy paying annuities to the EPO for ever, on tens of thousands of not yet examined WO publications, as long as I can quickly take through to issue and then enforce the ones it turns out I need quickly, to stamp on a troublesome upstart. In fact, for bringing the upstart to a settlement, it might even suit me better that my ten thousand WO publications have not yet come under the blowtorch of substantive examination at the EPO. I can say to the upstart's legal advisers: read the claims of all those WO publications and imagine what I'm going to do to you when I get them all to issue.

So Henri, what say you to that? I'm looking for an explanation why those serving on the AC are so craven. I'm sceptical it is because BB is paying for private dental treatment in Munich, or for slap-up dinners. I think they are followiing the line given them by their ministers. So why do their ministers behave like that? Because they are under somebody's thumb or because the EPO is not important enough to appear on their radar screens?

Moving the boards to Vienna without a previous diplomatic conference would be outside the legal frame of the EPC and, as a consequence, further weaken the independence of the boards. As Sir Robin and the European judges observed in their letter concerning the house ban, threatening the judicial independence of the Boards of Appeal would “call in question the guarantee of an independent and impartial review of the European Office's decisions by a judicial body. Not tolerating that should be the common interest of all Member States of the European Patent Organisation.” They quite explicitly pointed out that the point could well come up in a real case concerning the status of Board of Appeal.

Let´s hope that the members of the AC are wise enough not to put at risk the future of the EPO and of the unitary patent.

Inside sources conveyed to me that the boards are moved to a place called "Ryswick" or "Rysiwik" or so ... i couldn't find out where that is. They get a transparent building and a VW for free, regular software updates included.

To come back to the beginning of this thread: ServRegs 53(1)a could be invoked, when the first memberstates cease to be party to the Convetion as they see coming that the party is in fact over, or at least realize they are not invited. NL could be first as the EPO rendered void the seat agreement unilaterally with CA/D 10/14, or did they not?

Can Rule extrapolate? What if BB's game is indeed to shift the patent revocation business out of the EPO in Munich and into the UPC in Paris? And what if, in engineering that shift, he is doing the bidding of Brussels. You know, have a real court to do the patent validity work in Europe, rather than a mere Patent Office.

Last Tango Before the Boards start a Viennese Walz, there might well be a last Tango to be danced at next week´s session of the AC, either by the Boards or the President.Consistent rumours indicate that the dubious operation launched in December against a board member for alleged misconduct might turn out as a disaster for the President. He is said to be pressing the delegations to overule (!) a decision by the EBA which he considers wrong.This is a very dramatic move because it now faces the AC delegations with their responsabilities: either they publicly denounce the President´s action and he is virtually dead, or it supports him and it is the end of the Boards of Appeal as an independent judicial authority.Les paris sont ouverts. Rien ne va plus, as you say, Monsieur le Président.

At the name of Benoît SUEPO’s host doth flee;On then, investigative soldiers, On to victory!BoA’s foundations quiver At the shout of praise:Brothers, lift your voices, Loud your anthems raise!

Like a mighty army Moves the "apparatus" of BB:Brothers, we march onwards Aided by "Immuniteeeeee";We are not divided, All one Body we —One in faith and Spirit, One in ENArchie !

Crowns and thrones may perish, Kingdoms rise and wane;But our mighty President Constant will remain.SUEPO hordes can never ’Gainst his will prevail;Staff has VP4 and VP5's promise, Which can never fail.

Nope, it will not be the empty Sijthoff building beside the EPO Shell building in Rijswijk (The hague), because the Rijswijk community council has recently decided that this is not an option for refugees from Munich. VP1 tried very hard to make this work and he felt really bad after that decision...

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